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‘Thou Shall Not Kill’: The Use of Lethal Force in Non-International Armed Conflicts

Published online by Cambridge University Press:  06 June 2014

David Kretzmer
Affiliation:
David Kretzmer is Emeritus Professor, Hebrew University of Jerusalem; Professor of Law, Sapir College, David.Kretzmer@huji.ac.il; Aviad Ben-Yehuda, aviad.benyehuda@mail.huji.ac.il, and Meirav Furth, meiravff@gmail.com, are LLB students, Hebrew University of Jerusalem.
Aviad Ben-Yehuda
Affiliation:
David Kretzmer is Emeritus Professor, Hebrew University of Jerusalem; Professor of Law, Sapir College, David.Kretzmer@huji.ac.il; Aviad Ben-Yehuda, aviad.benyehuda@mail.huji.ac.il, and Meirav Furth, meiravff@gmail.com, are LLB students, Hebrew University of Jerusalem.
Meirav Furth
Affiliation:
David Kretzmer is Emeritus Professor, Hebrew University of Jerusalem; Professor of Law, Sapir College, David.Kretzmer@huji.ac.il; Aviad Ben-Yehuda, aviad.benyehuda@mail.huji.ac.il, and Meirav Furth, meiravff@gmail.com, are LLB students, Hebrew University of Jerusalem.
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Abstract

The assumption of this article is that when a state is involved in an international armed conflict it may employ lethal force against combatants of the enemy unless they are hors de combat. Hence, even when it would be feasible to do so, it has no duty to apprehend enemy combatants rather than use force against them. Does this same norm apply in non-international armed conflicts occurring in the territory of a single state (internal conflicts)? The writers argue that the answer is in the negative. Despite the attempt in recent years to narrow the differences between the norms that apply in non-international armed conflicts (NIACs) and international armed conflicts (IACs), there are still significant differences between the two types of armed conflict, which justify the application of different norms in this context. Common Article 3 of the Geneva Conventions refers only to humanitarian norms and does not imply that the norms relating to the conduct of hostilities in IACs apply also in NIACs. While customary international law may allow states to use lethal force in a NIAC in the actual conduct of hostilities, there is no basis for assuming that the norm that ostensibly applies in IACs relating to use of such force outside the context of hostilities applies in NIACs too. The jurisprudence of the International Criminal Tribunal for the former Yugoslavia, which is the main source for the arguments on closing the gap between IACs and NIACs, relates only to humanitarian norms and has never addressed extending the permissive IAC norms of the law of armed conflict (LOAC) to NIACs. Finally, in an internal armed conflict the state has a dual capacity: it must respect and ensure the human rights of all persons subject to its jurisdiction, and it is a party in an armed conflict with some of those persons. In such a situation, the only context in which the state may deviate from regular norms of law enforcement is the actual context of hostilities, in which application of such norms is not feasible. In other contexts, its human rights obligations prevail.

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Articles
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2014 

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References

1 See Gloria Gaggioli, ‘Expert Meeting, The Use of Force in Armed Conflicts: Interplay between the Conduct of Hostilities and Law Enforcement Paradigms’, International Committee of the Red Cross, 15 November 2013, Publication ref 4171, http://www.icrc.org/eng/resources/documents/publication/p4171.htm.

2 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I or AP I), art 41(2) states: ‘A person is hors de combat if: (a) he is in the power of an adverse Party; (b) he clearly expresses an intention to surrender: or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself, provided that in any of these cases he abstains from any hostile act and does not attempt to escape.’

3 See Kretzmer, David, ‘Use of Lethal Force against Suspected Terrorists’ in de Frías, Ana María Salinas, Samuel, Katia LH and White, Nigel D (eds), Counter-Terrorism: International Law and Practice (Oxford University Press 2012) 618Google Scholar; Kretzmer, David, ‘The Legal Regime Governing the Use of Lethal Force in the Fight against Terrorism’ in van den Herik, Larissa and Schrijver, Nico (eds), Counter-Terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges (Cambridge University Press 2013) 559Google Scholar.

4 This view was adopted in Melzer, Nils, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’ (2008) 90 International Review of the Red Cross 991, 1040–44 (Interpretative Guidance)Google Scholar. See also Melzer, Nils, Targeted Killing in International Law (Oxford University Press 2008) 287–90CrossRefGoogle Scholar, 397–99 (Targeted Killing). For scathing criticism of Melzer's view see Parks, W Hays, ‘Part IX of the ICRC “Direct Participation in Hostilities” Study: No Mandate, No Expertise, and Legally Incorrect’ (2010) 42 New York University Journal of International Law and Politics 769Google Scholar; and see the reply by Melzer in Melzer, Nils, ‘Keeping the Balance Between Military Necessity and Humanity: A Response to Four Critiques of the International Committee of the Red Cross's Interpretive Guidance on the Notion of Direct Participation in Hostilities’ (2010) 42 New York University Journal of International Law and Politics 831Google Scholar.

5 Goodman, Ryan, ‘The Power to Kill or Capture Enemy Combatants’ (2013) 24 European Journal of International Law 819CrossRefGoogle Scholar. See also Michael N Schmitt's reply to Goodman in Schmitt, Michael N, ‘Wound, Capture, or Kill: A Reply to Ryan Goodman's “The Power to Kill or Capture Enemy Combatants”’ (2013) 24 European Journal of International Law 855CrossRefGoogle Scholar, and Goodman's rejoinder to Schmitt in Goodman, Ryan, ‘The Power to Kill or Capture Enemy Combatants: A Rejoinder to Michael N Schmitt’ (2013) 24 European Journal of International Law 863CrossRefGoogle Scholar.

6 For a thorough discussion of the issue of ‘kill or capture’ see Ohlin, Jens David, ‘The Duty to Capture’ (2013) 97 Minnesota Law Review 1268Google Scholar. See also Blum, Gabriella, ‘The Dispensable Lives of Soldiers’ (2010) 2 Journal of Legal Analysis 115CrossRefGoogle Scholar, who challenges the traditional view that combatants may be killed even when they pose no military threat to the enemy.

7 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, [25].

8 See Lubell, Noam and Derejko, Nathan, ‘A Global Battlefield? Drones and the Geographical Scope of Armed Conflict’ (2013) 11 Journal of International Criminal Justice 65CrossRefGoogle Scholar.

9 Stewart, James G, ‘Towards a Single Definition of Armed Conflict in International Humanitarian Law: A Critique of Internationalized Armed Conflict’ (2003) 85 International Review of the Red Cross 313CrossRefGoogle Scholar; Crawford, Emily, ‘The Customary International Law Applicable in Non-International Armed Conflicts’ (2008) 15 Australian International Law Journal 29Google Scholar; Crawford, Emily, ‘Unequal Before the Law: The Case for the Elimination of the Distinction between International and Non-International Armed Conflicts’ (2007) 20 Leiden Journal of International Law 441CrossRefGoogle Scholar.

10 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609 (Additional Protocol II or AP II).

11 Dinstein, Yoram, Schmitt, Michael and Garraway, Charles HB, Manual on the Law of Non-International Armed Conflict (San Remo 2006)Google Scholar, define non-international armed conflicts as ‘armed confrontations occurring within the territory of a single State and in which the armed forces of no other State are engaged against the central government’ (art 1.1).

12 See Melzer, Targeted Killing (n 4) 261 (‘The modern concept of non-international armed conflict includes all situations of sufficiently intense or protracted armed violence between identifiable and organized armed groups regardless of where they occur, as long as they are not of an interstate character’).

13 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight (entered into force 11 December 1868) 138 CTS.

14 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (entered into force 8 February 1928) 94 LNTS 66–74.

15 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (entered into force 27 July 1929) 118 LNTS 303, which replaced the 1864 Convention, and the 1929 Convention Relative to the Treatment of Prisoners of War (entered into force 19 June 1931) 118 LNTS 343.

16 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS 31 (GC I), which replaced the parallel 1929 Convention; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (entered into force 21 October 1950) 75 UNTS 85 (GC II); Geneva Convention Relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135 (GC III), which replaced the parallel 1929 Convention; and Geneva Convention Relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV).

17 For example, rules governing the conduct of forces toward prisoners of war were initially included in the 1899 Hague Convention (II) with Respect to the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entry into force 4 September 1900) (1899 Hague Convention II) and the 1907 Convention (VI) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entry into force 26 January 1910) 187 CTS 227 (1907 Hague Convention IV), only to be followed by the current rules of GC III. Yoram Dinstein argues that the distinction between the ‘Hague law’ and ‘Geneva law’ was never justified in the context of international armed conflicts: see Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press 2004) 920CrossRefGoogle Scholar.

18 The ICRC defines international humanitarian law as ‘the branch of international law limiting the use of violence in armed conflicts by: a) sparing those who do not or no longer directly participate in hostilities; b) restricting it to the amount necessary to achieve the aim of the conflict, which – independently of the causes fought for – can only be to weaken the military potential of the enemy’: Sassòli, Marco, Bouvier, Antoine A and Quintin, Anne, How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, Vol 1 (3rd edn, International Committee of the Red Cross 2011) Ch 1, 1Google Scholar.

19 See Kosirnik, Rene, ‘The 1977 Protocols: A Landmark in the Development of International Humanitarian Law’ (1997) 320 International Review of the Red CrossGoogle Scholar.

20 Consider this statement by the International Court of Justice in Nuclear Weapons (n 7) [75]: ‘These two branches of the law applicable in armed conflict have become so closely interrelated that they are considered to have gradually formed one single complex system, known today as international humanitarian law. The provisions of the Additional Protocols of 1977 give expression and attest to the unity and complexity of that law.’

21 Reisman, W Michael, ‘Editorial Comment: Holding the Center of the Law of Armed Conflict’ (2006) 100 The American Journal of International Law 852Google Scholar, 856 (‘In the period after World War II, Part B enjoyed a dramatic expansion, signaled by the installation in the legal lexicon of the rather Orwellian term “international humanitarian law” in place of the erstwhile grim designations “law of war” and “law of armed conflict”’).

22 On this point see Berman, Nathaniel, ‘Privileging Combat? Contemporary Conflict and the Legal Construction of War’ (2004–05) 43 Columbia Journal of Transnational Law 1, 3Google Scholar.

23 For the development of treaty law relating to NIACs leading up to and following the adoption of Common Article 3 see Laura Perna, The Formation of the Treaty Law on Non-International Armed Conflicts (Martinus Nijhoff 2006).

24 It is worth noting that international human rights law – which also regulates relations between the state and individuals in its territory and subject to its jurisdiction – developed only at a later stage, with the adoption of human rights conventions, beginning in the 1950s and 1960s.

25 See Sivakumaran, Sandesh, The Law of Non-International Armed Conflict (Oxford University Press 2012) 336–37Google Scholar, and the sources cited there; Perna (n 23) Chs I and II.

26 See Oeter, Stefan, ‘Civil War, Humanitarian Law, and the United Nations’ (1997) 1 Max Planck Yearbook of United Nations Law 195Google Scholar, who describes the views of Vattel on this issue.

27 The one exception was the case in which a state recognised a situation of belligerency with non-state actors involved in an IAC. Such recognition was extremely rare. In all events it was entirely within the discretion of the state involved to decide whether to recognise belligerency: see Sivakumaran (n 25) 9–20; Moir, Lindsay, The Law of Internal Armed Conflict (Cambridge University Press 2002) 5CrossRefGoogle Scholar; Perna (n 23) 29–31; Akande, Dapo, ‘Classification of Armed Conflicts: Relevant Legal Concepts’ in Wilmshurst, E (ed), International Law and the Classification of Conflicts (Oxford University Press 2012) 14Google Scholar.

28 Oeter (n 26) 198. The last formal recognition of belligerency occurred in 1861, when Britain recognised the belligerency of the Confederate states at the outset of the American Civil War. Such recognition elevates a rebel movement to the status of a state and demands that other states remain neutral between the warring parties. While President Lincoln did not formally recognise a state of belligerency with the Confederate states, in fact he treated them as belligerents in all war-related matters. Thus he imposed a blockade on the Southern ports, declared the subjects of the Confederate states to be enemy aliens, and ordered that captured Confederate soldiers be afforded prisoner of war status: see Lootsteen, Yair M, ‘The Concept of Belligerency in International Law’ (2000) 166 Military Law Review 109, 114–15Google Scholar. Some authors hold that, given the position of some neutral states and the proclamation of the blockade, there was in fact a recognition of belligerency in the American Civil War: see Perna (n 23) 31. In the Spanish Civil War neither the Republican government of Spain nor third parties formally recognised a situation of belligerency with the Nationalist insurgents, but both combatant parties agreed that they would respect the law of war, even though they were not legally bound to do so: Lootsteen, ibid 39. Given the intervention of foreign forces on both sides of the conflict, some writers regard the Spanish Civil War as an international armed conflict: Lootsteen, ibid 37–38; here is a division of opinion between scholars over whether the doctrine of belligerency is still applicable today, after NIACs have become regulated under international conventions: see Lootsteen, ibid. See also Stewart (n 9) 348.

29 GIAD Draper, ‘Humanitarian Law and Internal Armed Conflicts’ (1983) 13 Georgia Journal of International and Comparative Law 253, 259–61Google Scholar.

30 Willmott, Deidre, ‘Removing the Distinction Between International and Non-international Armed Conflict in the Rome Statute of the International Criminal Court’ (2004) 5 Melbourne Journal of International Law 196, 200Google Scholar.

31 See Perna (n 23) Ch II.

32 For the historical background to the adoption of Common Article 3 see Elder, David A, ‘The Historical Background of Common Article 3 of the Geneva Convention of 1949’ (1979) 11 Case Western Reserve Journal of International Law 37, 4143Google Scholar; Moir (n 27); and Cullen, Anthony, The Concept of Non-International Armed Conflict in International Humanitarian Law (Cambridge University Press 2010)CrossRefGoogle Scholar.

33 Pictet, Jean S (ed), Commentary on the Third Geneva Convention Relative to the Treatment of Prisoners of War (International Committee of the Red Cross 1960) 31Google Scholar.

34 Cullen (n 32) 29.

35 Moir (n 27); Willmott (n 30) 200; Elder (n 32).

36 Moir, Lindsay, ‘Towards the Unification of International Humanitarian Law?’ in Burchill, Richard, White, Nigel D and Morris, Justin (eds), International Conflict and Security Law (Cambridge University Press 2005) 111Google Scholar; Perna (n 23) 49–54.

37 Final Record of the Diplomatic Conference at Geneva of 1949, Vol II, Section B, 336–37 (1951).

38 Cullen (n 32) 41.

39 Pictet, Jean S (ed), Commentary on Geneva Convention (IV) Relative to the Protection of Civilian Persons in Times of War (International Committee of the Red Cross 1958) 36Google Scholar.

40 ibid.

41 In 1956 Jean Pictet expressed the hope that ‘one day the Powers will accord at all times and to all men the benefits they have already agreed to grant their enemies in time of war’. This statement also clarifies Pictet's view, to which Common Article 3 did not import the permissive rules pertaining to the laws of war: see Pictet, Jean, Red Cross Principles (International Committee of the Red Cross 1956) 29Google Scholar. Following the line of Pictet, Gary Solis, The Law of Armed Conflict, International Humanitarian Law in War (Cambridge University Press 2010) 153–54, states: ‘LOAC has virtually no application in Common Article 3 conflicts.’ He concedes that ‘to an ever greater degree, IHL and other elements of LOAC are making their way into Common Article 3 conflicts’. Nevertheless, he maintains that the main law that applies is the domestic law of the state involved, Common Article 3 and human rights law.

42 Pictet (n 39) 44.

43 This principle now appears in Additional Protocol I (n 2) art 43(2): ‘Members of the armed forces of a Party to a conflict … are combatants, that is to say, they have the right to participate in hostilities.’

44 Kretzmer, David, ‘Rethinking the Application of IHL in Non-International Armed Conflicts’ (2009) 42 Israel Law Review 8CrossRefGoogle Scholar.

45 Pictet (n 39) 46.

46 See Moir (n 27) 23.

47 See, eg, Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (and Protocols) (as amended on 21 December 2001) 1342 UNTS 137 (Conventional Weapons Convention), art 1(3) states: ‘In case of armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply the prohibitions and restrictions of this Convention and its annexed Protocols.’ See also United Nations Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II) 1342 UNTS 168 (entered into force 2 December 1983; as amended 3 May 1996) 35 ILM 1206, annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (entry into force 3 December 1998), extending the restriction on the use of land mines to cover internal armed conflicts in the 1996 amendment. For further reading see Moir (n 36) 117; Akande (n 27) 5–9.

48 Sivakumaran, Sandesh, ‘Re-envisaging the International Law of Internal Armed Conflict’ (2011) 22 European Journal of International Law 219, 243CrossRefGoogle Scholar.

49 Under Common Article 3 the conflict may also be one between two or more organised groups in the territory of a state. In this case the domestic law of that state will obviously apply to the warring factions.

50 See Nuclear Weapons (n 7) [25]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, [106].

51 The cases we are referring to relate to the Chechnyan conflict: see, eg, Isayeva v Russia (2005) 41 EHRR 38 [191]; Isayeva, Yusupova and Bazayeva v Russia App Nos 57947/00, 57948/00 and 57949/00, Judgment of 19 December 2002. See also William Abresch, ‘A Human Rights Law of Internal Armed Conflict: The European Court of Human rights in Chechnya’ (2005) 16 European Journal of International Law 741; Tamura, Eriko, ‘The Isayeva Cases of the European Court of Human Rights: The Application of International Humanitarian Law and Human Rights Law in Non-International Armed Conflicts’ (2011) 10 Chinese Journal of International Law 129CrossRefGoogle Scholar.

52 ICTY, Prosecutor v Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, Appeals Chamber, 2 October 1995, [70].

53 Additional Protocol II (n 10) art 1(2). See also ICTY, Prosecutor v Boškoski, Judgment, IT-04-82-T, Trial Chamber, 10 July 2008, [184]–[193].

54 See more about the customary nature of the principle of distinction as stipulated in Additional Protocol I (n 2) arts 37(1), 48, 51, 52(2), 57 and 58, in Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol I: Rules (International Committee of the Red Cross and Cambridge University Press 2005)CrossRefGoogle Scholar (ICRC Study), rr 1, 2, 7, 8, 10–15, 17–24, 65; Greenwood, Christopher, ‘The Customary Law Status of the 1977 Protocols’ in Essays on War in International Law (Cameron May 2006)Google Scholar; Schmitt, Michael N, ‘Human Shields in International Humanitarian Law’ (2009) 47 Columbia Journal of Transnational Law 292, 308Google Scholar; Dinstein (n 17) 83; Meron, Theodor, Human Rights and Humanitarian Norms as Customary Law (Clarendon Press 1989) 6465Google Scholar.

55 War Department, Instructions for the Government of Armies of the United States in the Field (entered into force 24 April 1863), art 22.

56 St Petersburg Declaration (n 13); See also ICRC Study (n 54) r 1.

57 Additional Protocol I (n 2) art 48.

58 Nuclear Weapons (n 7) [78].

59 International and Operational Law Department, Law of War Handbook (The Judge Advocate General's School US Army 2004)Google Scholar.

60 Blank, Laurie, ‘The Application of IHL in the Goldstone Report: A Critical Commentary’ (2010) 12 Yearbook of International Humanitarian Law 347CrossRefGoogle Scholar.

61 Additional Protocol I (n 2) art 48.

62 Interestingly, while in the first part of art 48 mention is made both of combatants and of military objectives, in the latter part of the article mention is made only of ‘military objectives’, thus implying, as it were, that the parties may not direct their operations against combatants. The ICRC Commentary on Additional Protocol I clarifies this when it states that military objects include ‘the armed forces and their installations and transports’: see Sandoz, Yves and others (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (International Committee of the Red Cross 1987) 600Google Scholar, para 1874.

63 Additional Protocol II (n 10) art 13(2).

64 Blank, Laurie and Guiora, Amos, ‘Teaching an Old Dog New Tricks: Operationalizing the Law of Armed Conflict in New Warfare’ (2010) 1 Harvard National Security Journal 45, 5455Google Scholar.

65 And see the Tadić case (n 52) [111], in which the ICTY Appeals Chamber stated: ‘Bearing in mind the need for measures to ensure the better protection of human rights in armed conflicts of all types, [… the General Assembly] affirms the following basic principles for the protection of civilian populations in armed conflicts, without prejudice to their future elaboration within the framework of progressive development of the international law of armed conflict: … 2. in the conduct of military operations during armed conflicts, a distinction must be made at all times between persons actively taking part in the hostilities and civilian populations.’

66 See Additional Protocol I (n 2) arts 43 and 50.

67 See Sassòli, Bouvier and Quintin (n 18) 343–44.

68 ICRC Study (n 54) r 17.

69 Additional Protocol I (n 2) art 13(3).

70 In IACs the requirement for members of armed forces to wear uniforms is regarded as a norm of customary international law. Thus, members of armed forces who, when falling into the hands of the enemy, did not distinguish themselves from civilians by wearing a uniform or by another distinctive sign recognisable from a distance lose their protection as combatants: Sassòli, Marco, ‘Combatants’ in Wolfrum, Rüdiger (ed), Max Planck Encyclopaedia of Public International Law (Oxford University Press 2008)Google Scholar; ICRC Study (n 54) r 106; GC III, art 4(A)(b)(2) expressly requires that members of militia which are not part of the armed forces but belong to a party to the IAC ‘have a fixed distinctive sign recognizable at a distance’.

71 Melzer, Interpretative Guidance (n 4) 1036 (‘Members of organized armed groups belonging to a non-state party to the conflict cease to be civilians for as long as they remain members by virtue of their continuous combat function’).

72 Schmitt, Michael N, ‘The Status of Opposition Fighters in a Non-International Armed Conflict’ (2012) 8 Naval War College International Law Studies 119, 133Google Scholar.

73 Additional Protocol II (n 10) art 1.

74 Moir (n 27) 89–132.

75 Thus, for example, in the second session of the Diplomatic Conference convened in Geneva in March and April 1975, Norway's representative argued strongly that ‘the protection of victims of armed conflicts should be the same, regardless of their legal or political classification. The Conference should establish identical legislation for all victims of all armed conflicts … There should be one single protocol covering all victims of armed conflicts’. However, being realistic, the Norwegian delegation would participate for the time being in the Conference on the assumption that there would be two separate protocols, but would reserve its right to propose at a later stage that they be amalgamated into one protocol: ‘Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts’, Geneva 1974–77 (1978), CDDH/I/SE.23, vol VIII, 217, http://www.loc.gov/rr/frd/Military_Law/pdf/RC-records_Vol-8.pdf. See also Moir (n 36) 113.

76 See Sassòli, Bouvier and Quintin (n 18) 141. The editors claim that with the adoption of Additional Protocols I and II in 1977 these two branches of the law were merged.

77 See Additional Protocol II (n 10) arts 13–18.

78 Additional Protocol I (n 2) art 43(2).

79 ibid art 51.5(b).

80 Sivakumaran 2011 (n 48) 244–45; Moir (n 27).

81 See Part 2.2.1 for a thorough explanation of the historical development of Common Article 3.

82 This is a translation of the original French text, which speaks of ‘les populations et les belligérants restent sous la sauvegarde et sous l'empire des principes du droit des gens, tels qu'ils résultent des usages établis entre nations civilisées, des lois de l'humanité et des exigences de la conscience publique’.

83 Rather than ‘inhabitants and belligerents’ AP I refers to ‘civilians and combatants’ and the reference to civilised nations is omitted. The French text of AP I, which is as authoritative as the English, speaks of ‘les personnes civiles et les combattants restent sous la sauvegarde et sous l'empire des principes du droit des gens, tels qu'ils résultent des usages établis, des principes de l'humanité et des exigences de la conscience publique’.

84 Sandoz and others (n 62) para 4435. The authors themselves think that the matter was not as simple as that and argue that ‘the existence of customary norms in internal armed conflicts should not be totally denied’: ibid.

85 ibid para 4789: ‘Those who belong to armed forces or armed groups may be attacked at any time.’

86 See eg Emily Crawford (2007) (n 9).

87 Thus Crawford (ibid 443) states: ‘Finally, it should be noted that the approach to international humanitarian law in this article is from a “protection” viewpoint, coming from the idea that humanitarian law should seek to protect individuals in times of armed conflict. This is in contrast to the perspective that IHL seeks to protect and guide states in their armed conflicts with other states or entities. The emphasis in this article is that the laws of armed conflict must serve to protect the individual, and should be interpreted to uphold this intent.’

88 See, eg, UNSC Res 771(1992), 13 August 1992, UN Doc S/RES/771 (1992).

89 UNSC Res 808(1993), 22 February 1993, UN Doc S/RES/808 (1993), followed by UNSC Res 827(1993), 25 May 1993, UN Doc S/RES/827 (1993), in which the Statute of the Tribunal was approved.

90 UNSC Res 780(1992), 6 October 1992, UN Doc S/RES/780 (1992).

91 Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780(1992), UN Doc S/1994/674 (27 May 1994) 13, para 52.

92 Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), 3 May 1993, UN Doc S/25704, para 34.

93 Statute of the International Criminal Tribunal for the former Yugoslavia, UN Doc S/RES/1877 (2009) 7 July 2009, adopted by the Security Council in Resolution 1877 (7 July 2009) (ICTY Statute), arts 2 and 3.

94 ibid art 5.

95 Tadić (n 52) [2] and [65].

96 ibid [89]. For a penetrating analysis of the decision in this case see Greenwood, Christopher, ‘International Humanitarian Law and the Tadić Case’ (1996) 7 European Journal of International Law 265CrossRefGoogle Scholar; Moir (n 27) 134–36; Boelaert-Suominen, Sonja, ‘Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is Customary Law Moving Towards a Uniform Enforcement Mechanism for all Armed Conflicts?’ (2000) 5 Journal of Conflict and Security Law 63, 7778CrossRefGoogle Scholar.

97 Moir (n 27) 134.

98 Tadić (n 52) [97].

99 ibid [100]–[101].

100 ibid [119] (emphasis in the original).

101 ibid.

102 ibid (emphasis added).

103 See de Guzman, Margaret, ‘How Serious are International Crimes? The Gravity Problem in International Criminal Law’ (2012) 51 Columbia Journal of Transnational Law 18, 3853Google Scholar; Ohlin (n 6) 1287–95.

104 ibid 1291.

105 Tadić (n 52) [106].

106 ibid [66].

107 ibid [70] (emphasis added).

108 Lubell and Derejko (n 8) 70.

109 ICTY, Prosecutor v Blaškić, Judgment, IT-95-14-T, Trial Chamber, 3 March 2000, [64] (emphasis added).

110 ibid [70] (emphasis added).

111 ICTY, Prosecutor v Kordić and Čerkez, Judgment, IT-95-14/2-T, Trial Chamber, 26 February 2001, [27]; supported by the Appeals Chamber, IT-95-14/2-A, 17 December 2004, [319] (emphasis added).

112 ICTY, Prosecutor v Kunarac, Judgment, IT-96-23-T and IT-96-23/1-T, Trial Chamber, 22 February 2001, [568].

113 ICTY, Prosecutor v Kunarac, Judgment, IT-96-23 and IT-96-23/1-A, Appeals Chamber, 12 June 2002 [56]–[57]. The ICTY stated that ‘[t]here is no necessary correlation between the area where the actual fighting is taking place and the geographical reach of the laws of war’.

114 ICTR, Prosecutor v Akayesu, Judgment, ICTR-96-4-T, Trial Chamber, 2 September 1998, [635]– [636].

115 ICTR, Prosecutor v Rutaganda, Judgment, ICTR-96-3-A, Trial Chamber, 6 December 1999, [101].

116 Lubell and Derejko (n 8) 74–75.

117 See, inter alia, Blaškić (n 109); Kordić and Čerkez (n 111); Kunarac (n 113).

118 Lubell and Derejko (n 8) 71; particularly the latter end of the conflict: Report of the UN Secretary-General's Panel of Experts on Accountability in Sri Lanka, 31 March 2011, 9–13.

119 Lubell and Derejko (n 8) 71. See Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary-General: Addendum – Activities of the Office of the High Commissioner for Human Rights in Uganda, UN Doc A/HRC/7/38/Add.2 (25 January 2008) 2,7.

120 Lubell and Derejko (n 8) 71. From 2004 to 2008 multiple armed conflicts erupted between the ‘Huthis’ rebels and the armed forces of Yemen in the country's northernmost governorate, Sa'da: see Human Rights Watch, Invisible Civilians: The Challenge of Humanitarian Access in Yemen's Forgotten (2008) 6.

121 See International Committee of the Red Cross, ‘Annual Report 2011: Democratic Republic of the Congo’, 109, http://www.icrc.org/spa/assets/files/annual-report/icrc-annual-report-2011.pdf.

122 Wall (n 50) [102–114]; International Committee of the Red Cross, ibid 178–79, 215–19; Loizidou v Turkey (Preliminary Objections), App No 15318/89 (ECtHR) 23 March 1995), paras 60–64; Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (2004).

123 Al-Skeini v United Kingdom (2011) 53 EHRR 589, para 135.

124 For a very similar approach, see Lubell and Derejko (n 8) 71–72.

125 See Nuclear Weapons (n 7) [25]. The Court stated that during an armed conflict, whether intentional deprivation of life will be regarded as ‘arbitrary’ within the meaning of art 6 of the International Convention on Civil and Political Rights (the right to life) will be determined by the lex specialis, namely, the norms of LOAC.

126 Lubell and Derejko (n 8) 71; ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Report on the Work of the Conference, Second Session, 3 May–3 June 1972, Vol I, July 1972, 68, [2.59].

127 Lubell and Derejko (n 8) 76.

128 According to the ICRC's interpretive guidance, the restraints on the use of force may be limited to circumstances in which the attacking force possesses effective territorial control: see Melzer, Interpretive Guidance (n 4) 1043. The ‘capture rather than kill’ doctrine may be limited to situations that more closely approximate law enforcement operations rather than standard IACs and active battlefields: Goodman (n 5) 13.

129 Melzer, Interpretive Guidance (n 4) 1043.

130 Lubell and Derejko (n 8) 72; Stephanie Nebehay, ‘Some Syria Violence Amounts to Civil War: Red Cross’, Reuters, Geneva, 8 May 2012.

131 Lubell and Derejko (n 8) 72. As explained by the ICRC President, Jakob Kellenberger, ‘[i]t can be a situation of internal armed conflict in certain areas: an example was the fighting in Baba Amro in Homs in February’. See also Stephanie Nebehay, ‘Exclusive: Red Cross Ruling Raises Questions of Syrian War Crimes’, Reuters, Geneva, 14 July 2012.

132 ibid; Lubell and Derejko (n 8) 73; see also ICRC, ‘Syria: ICRC and Syrian Arab Red Crescent Maintain Aid Effort Amid Increasing Fighting’, Operational Update, 17 July 2012.

133 Nebehay (n 131).